RE AKIF MUHAMMAD

HCAL 595/2018

[2020] HKCFI 2901

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 595 OF 2018

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DECISION

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1.  On 17 August 2020 I refused to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) in dismissing his appeal regarding his non-refoulement claim upon finding none of the grounds put forward by him reasonably arguable for his intended challenge, that there was no error of law or procedural unfairness in the process before the Director of Immigration or the Board or in their decisions, and that there was no reasonable prospect of success in his intended application.

2.  The Applicant now by a summons issued on 11 September 2020 seeks extension of time to appeal against that decision, as the 14-day period for him to file his appeal under Order 53 rule 3(4) of the Rules of High Court, Cap 4A ended on 31 August 2020, and hence he was late by 11 days with his intended appeal. 

3.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the prospect of the intended appeal; and (iv) the prejudice to the respondent if an extension of time were granted: see Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346.

4.  In the Applicant’s case, a delay of 11 days may not be considered as insignificant, for which he explained in both his affirmation and at the hearing of his summons that he only received the decision on 9 September 2020, and as he could not read English and by the time he was able to find someone to help him with the preparation of the documents for his appeal, he was then already out of time.

5.  As the court record shows that the decision was sent on the same day to the Applicant at his last reported address, and while the current Covid-19 pandemic may have impacted on the general postal service causing some inevitable delay, I find it difficult to believe that it would have taken more than 3 weeks until 9 September 2020 for the decision to reach him as alleged, and in the absence of any documentary evidence such as the envelop which contained the decision showing the post mark in support of his allegation, I am not persuaded that the Applicant has provided any proper or valid explanation for his delay.    

6.  More importantly, nor did he in his summons or supporting affirmation provide any draft or proposed grounds of appeal, or any particulars of any error in the decision, or why it may be reasonably argued that the decision was unfair or unreasonable, and at the hearing of his summons he merely stated that he was not satisfied with the decision.  As such and in the absence of any error in the decision being clearly and properly identified by the Applicant, I do not see any prospect of success in his intended appeal.     

7.  In the premises, it would be futile to extend time for what appears to be a hopeless appeal.  Accordingly, I refuse his application for extension of time to appeal, and dismiss his summons.